SAMINA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE present appeal has been filed by appellant under Section 372 Cr.P.C. being aggrieved by the acquittal of accused Sakir for offence under Sections 363, 366 -A and 376(2)(g) IPC. Alongwith appeal, an application bearing CRM No.49679 of 2013 has been filed under Section 5 of the Limitation Act for condoning the delay of 45 days in filing the appeal.

(2.) WE have heard the learned counsel for the appellant on merit and have also examined the impugned judgment. Brief allegations are that on 29.2.2012 at about 8 p.m. the prosecutrix was enticed away by Sahun and Sakir on a motor - cycle in connivance with Kupla alias Akhtar, Bundu, Noor Mohammad and Sharif, residents of village Nangla Kanpur. It was further alleged thatUsman uncle of the prosecutrix had seen them taking away the prosecutrix on motor -cycle. It further comes out that Sahun being Juvenile is being tried by The Juvenile Justice Board. In this case only accused Sakir was challaned. The critical examination of the judgment of the trial Court shows that prosecutrix while appearing before Juvenile Justice Board Palwal had made a statement Ex.DA which is contradictory to the statement made before the trial Court. In the said statement Ex.DA, there is no allegation of rape against accused Sakir. The allegations were that Sakir was driving the motor cycle. However, the motor cycle was recovered from the possession of accused Sahun on the basis of a disclosure statement. The allegations were that Sahun and Sakir came on a motor cycle and took away the prosecutrix to the nearby fields where Sahun committed rape upon the prosecutrix and Sakir was guarding near the motor cycle. There were no allegations of rape against the present accused Sakir. Motor cycle was, however, recovered from the possession of accused Sahun on the basis of disclosure statement. Sakir is stated to have left them at Railway Station Palwal and came back on the motor cycle. The prosecution had also relied upon the statement of Usman that he had seen Sahun and Sakir taking away prosecutrix at 8 -9 p.m. on 29.2.2012. However, it was admitted by Usman that it was month of February and it was dark at about 8/9 p.m. The distance between the main road and the residence of Usman is about one acre. Therefore,Usman could not see both the accused. In her statement, Ex.DA, the prosecutrix had stated that she was taken to the house of Khausar by Sahun. She had admitted that house of Khausar is having one room of 10x12 feet. Khausar was aged about 80 years and he is having three daughters, one son and one daughter -in -law and six children. In this way, there were 12 inhabitants in the said room. The trial Court also disbelieved the statement of prosecutrix that from Karnal to Delhi they travelled by a three wheeler which was over crowded and it took about three hours. The distance between Karnal and Delhi is 125 kilometre and three wheelers do not ply for such long distance. Usman PW is the uncle of the prosecutrix. He was having a dispute with Sakir over the contract of pond for fishing. Usman had not paid the amount due against him on account of fishing trade as admitted by prosecutrix in cross -examination. Therefore, trial Court noticed enmity between Usman and Sakir.

(3.) THE Supreme Court of India in State of U.P. Vs. Gobardhan and others, 2013 5 RCR(Cri) 743noticed that interference in the order of acquittal should be made only where there are compelling circumstances and judgment is found to be perverse; and that there is misreading of the evidence. In the present case, the main allegations of rape are against accused Sahun who is facing trial before the Juvenile Justice Board, Palwal. The present accused is alleged to have merely helped him. However, allegations against him could not be proved before thetrial Court. Usman PW uncle of the prosecutrix was having enmity with him. The prosecutrix had made a different statement qua accused before Juvenile Justice Board. Therefore, there is no illegality or infirmity in the impugned order of acquittal. As a result thereof, the present appeal as well as the application for condonation of delay stand dismissed.